Change The Seventh Circuit, If Not The Department of Justice, Can Believe In

What’s the point of prosecuting crime? What’s the point of putting people in prison?

Surely, in any well-functioning society – let alone any well-functioning democracy – there are a number of good reasons for prosecuting crime. There are also some that are not as obviously good.

Prosecuting crime prevents the people who commit crimes from being in a position to commit further crimes. Specific deterrence – deterring the specific person – makes sense as a function of sentencing.

Prosecuting people lets other people who are considering committing a crime know that if they are caught they will go to prison. If people fear prison, they may act in a way to avoid it, which means there may be less crime.

Prosecuting crime provides a sense to victims of a crime that what happened to them is recognized as wrong. There’s likely some value to society to having moral evaluations have force.

At the same time, each prosecution and conviction also creates a stat for the law enforcement agents, law enforcement agencies, and prosecutors involved. They can collect these stats and show them to their bosses, or to Congress. The IRS’s criminal agents had X number of convictions per agent against the FBI’s Y per agent – perhaps the IRS is a more effective law enforcement agency.

Stat based evaluations do, however, make it awfully hard to walk away from a case once labor has been invested in it.

Convictions also let prosecutors put out press releases, telling our good citizens that work is being done (and who is doing the work). Especially if the press release doesn’t reveal any reasons not to bring a case – like that it fails to serve many of the other ends of prosecution – the community will celebrate the prosecutor(‘s efforts).

I invite you to think about these reasons for prosecuting crime when you think about the Seventh Circuit’s recent case of United States v. Robertson.

Meet The Robertsons

Henry and Elizabeth Robertson were like many other couples. She worked as a pediatric nurse. He worked as a cable installer.

Many couples have hobbies that they enjoy for a time, then stop. I recall my wife and I went through a period where we played Mancala relentlessly. It lasted perhaps two years. Then we set the game aside.

The Robertsons didn’t have Mancala – instead, for a period of time in the 1990’s, they had a real estate company in Chicago. Using that company, the Robertsons defrauded a number of lenders out of $700,000. Eventually, the company collapsed, the Robertsons went bankrupt, and life moved on.

The weren’t charged with a crime at that point. Elizabeth continued working as a pediatric nurse. Henry kept installing cable television. The coached their kids soccer teams. Henry was elected block president to help keep their neighborhood crime free. Two of their kids went to college. One went into the military.

The Skies Darken

One day before the ten-year statute of limitations on bank fraud ran, the Robertsons were charged with bank and wire fraud for the real estate fraud.

They pled guilty.

The Sentencing Hearing

The Robertsons argued that the district court should consider and give more weight to the Robertsons conduct after the mortgage scam ended. They had disavowed their prior way of life. They gave back to others and to their community. They were, in many meaningful ways, very different people than when they had originally been sentenced.

The government even generously acknowledged that,

“over a ‘relatively significant amount of time,’ the Robertsons had ‘demonstrate[d] to the Court, to society, that they can stay out of trouble.’

The sentencing judge didn’t find this conversation interesting, apparently. He talked about the Robertsons’ lack of criminal history, then he sentenced Henry Robertson to 63 months in prison – just over 5 years. He sentenced Elizabeth Robertson to 41 months – or three and a half years.

The Seventh Circuit Reverses

The Seventh Circuit did not approve of how the district court approached the Robertsons’ rehabilitation.

First, the court of appeals noted that how a person lives his life after a crime is committed is incredibly important to what kind of sentence he should receive, particularly under Gall and Pepper, recent Supreme Court decisions:

The power of evidence of self-rehabilitation was evident in Gall, where the Supreme Court noted that it was reasonable for the district court to attach “great weight” to a defendant’s decision to change his life and withdraw from a drug distribution conspiracy: “Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant’s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.” 552 U.S. at 57. Such self-motivated rehabilitation “lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id. at 59.

The court of appeals faulted the district court for not meaningfully discussing these rehabilitative efforts. As the court held,

Substantial and reliable evidence of genuine rehabilitation presents a non-frivolous argument for imposing a sentence below the Guideline range. See Pepper, 131 S. Ct. at 1235; Gall, 552 U.S. at 57. Such arguments must be properly addressed and weighed by the sentencing court. A sentencing court’s consideration of a defendant’s non-frivolous arguments in favor of mitigation certainly may be brief, but it must also be meaningful. As we explained in Cunningham: “Whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.” 429 F.3d at 679. Here, we cannot determine whether the sentencing judge abused his discretion by, for example, overemphasizing the seriousness of the Robertsons’ offense or Henry’s criminal history or underemphasizing their rehabilitation in balancing the § 3553(a) factors, because it is not apparent from the sentencing transcript that such a balancing took place. Accordingly, we vacate and remand for resentencing.

It’s good that this case is going back for resentencing. I wonder, though, why the case was brought in the first place.